A Fine Feathered Frenzy

by Greg Walcher on May 9, 2016

A new book called Nature Unbound (Independent Institute) recounts the story of a landowner whose property was surrounded on all sides by federal (BLM) land. The 1.5 mile driveway leading to the property had been maintained by the family for generations, but had become overgrown with trees on both sides. He sought BLM permission to cut the trees back about three feet so he could re-grade and gravel the drive, as had been done before. The project would cost him $5,000. But this time he encountered opposition from the officials, who decided to require an environmental assessment that would take three to five years to complete. The owner was given the option of paying for the study himself, which he was able to do in nine months, but at a cost of $15,000 more.

The BLM actually had trouble finding any reason to require such an in-depth study, so they cited the Migratory Bird Treaty Act as justification because there might be bird nests in the trees.

Do government highway departments need migratory bird treaty permits, or just private landowners?

The Migratory Bird Treaty Act of 1918 was adopted at a time when giant ladies hats created a worldwide demand for bird feathers, leading to international trade that endangered several species of birds. The law, still very much in force, makes it illegal for anyone to kill, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or its parts, nests, or eggs without a federal permit. The law resulted from a treaty between the U.S. and Canada for the protection of migratory birds. Later amendments added Mexico, Japan, and Russia.

The law covers many popular species, such as quail, hummingbirds, hawks, eagles, ducks, doves, and geese. But it also includes starlings, sparrows, wrens, chickadees, blackbirds, thrushes, finches, crows, ravens, pigeons, robins, snipes, vultures, and more than 700 others — and all the various subspecies of each. Some of them are common pests that farmers routinely eliminate (they can do tremendous damage to fruit crops, for example), almost always illegally.

Species are generally covered if they belong to a family or group of species named in the treaty and have been documented to occur naturally in the U.S. There is an exception for birds raised on farms and sold for food, and another for eagle’s nests and eggs used in research, and eagle feathers used in religious ceremonies by Indian tribes. Even then, federal permits are required, and sometimes state permits. Violators can be fined up to $15,000 and sent to prison for two years. Someone engaged in baiting to catch birds intentionally for illegal sale can be fined as much as $100,000 and do an additional year in prison.

An update to the law in 2004 was intended to clarify that “non-native” species are not protected, but that term is poorly understood because so many species that are now very common in the U.S. were not originally native. The law is not supposed to apply to species that live in the U.S. as “the result of intentional or unintentional human-assisted introductions.” But if a species was introduced to North America in the days of Columbus (starlings, for instance), it is a more difficult distinction. At least two varieties of starlings — although generally considered non-native invasive species — are nevertheless covered by the law, so anyone disturbing starlings needs to know the difference between subspecies.

Getting a permit to remove problem birds is very difficult and expensive, by the way. In what the U.S. Fish and Wildlife Service calls “extreme circumstances,” the agency can issue a permit for relocating birds or nests, but normally such permits are only issued to a contractor specialized in wildlife relocation. The agency normal considers relocation “undue harm” to the birds. That rarely helps anyway because birds have a stubborn tendency to come back to the same property next year. They almost seem to know they are protected by federal law.

That 1918 law has become a classic example of environmental protection being used for purposes never intended, and only marginally related to the environment. Certainly banning international trade in bird feathers was important, and still is. Fans of historic shows like “Downton Abbey” invariably mention the period costumes, especially hats adorned with colorful feathers. Today we have learned to live without such extravagance, and developed a more enlightened appreciation for the value of the birds themselves. But their protection was never intended to be used as a delay tactic to stop routine property management, or to quadruple the cost of maintaining one’s driveway.

A version of this column originally appeared in the Grand Junction Daily Sentinel April 1, 2016